Consultant and Advisor

There are law firms that are accustomed to being governed through consensus — a process that requires all partners to agree with any action before it can occur. Consensus-based partnerships may be the hardest firms to manage and the most difficult in which to accomplish any form of significant change. There are, however, techniques that successful leaders employ to build consensus and, if used effectively, can permit consensus firms to operate in a reasonably decisive manner.

I’ve observed that the majority of law firms in the world make major decisions based on consensus. There appears to be little correlation as to the size of the firms, whether they speak the English language, practice common law or any other factor. It’s almost as if it were specified in the Magna Carta that if you put a bunch of lawyers together they will somehow default to consensus-based decision-making. Unfortunately, the result can be akin to having the UN Security Council running your law firm.

For the record, many of these consensus based firms would describe themselves as having a democratic form of governance but then tell you that they rarely take a vote and when they do, the votes are almost always unanimous. In the purest sense, democracy means that you take a vote and the proposition receiving the most votes prevails. In a consensus-based firm, for a decision to occur, everyone must agree with it – or at least not oppose it. So, effectively, each partner has a veto on any decision.

There’s nothing wrong with consensus… if you like the status quo. I spend a good portion of my time studying law firms’ cultures and comparing them to other forms of business organizations. One of the consistent elements of difference is the incredible resistance to change in law firms. Resistance to change goes hand in hand with being risk adverse which is, perhaps, the most common trait in law firm cultures. If you can keep something from changing you are probably minimizing the risk. Better the devil you know than the one you don’t.

The problem is that maintaining status quo is one of the most difficult objectives for a law firm to achieve. It’s a bit like riding a unicycle. You can stay upright if you move a bit forward or backward but if you try to stand still in one place you will fall off. With the combination of external factors impacting a firm and a constantly evolving partnership (partners getting older, retiring and new partners coming in), trying to keep a firm changeless is just about impossible.

You have to understand that consensus is not just a governance system, it’s a whole way of life for many firms. Consensus supports an array of subsystems all designed to make change so hard to accomplish that leaders who dare consider themselves to be “change agents” will begin pulling their hair out in frustration. The consensus building leader must develop techniques to get around those subsystems. So, if a managing partner seeks to effectively govern a law firm — never mind create any form of change — he or she had better know a thing or two about managing consensus. Having watched law firm leaders in consensus-based firms, I offer my observations about working effectively within the consensus process:

Make sure your partners understand the problem before you deliver the solution. Before you can sell people a better mousetrap, you have to convince them that they have mice. Never consider an issue or problem to be a foregone conclusion just because it seems obvious to you. The rule of thumb is to spend twice the time, research and arguments presenting the problem as you think it should require.

Start early and present only broad concepts initially. The devil really is in the details, and lawyers are professional fault finders. It is their job to pick through ideas, arguments, documents – whatever – and find reasons it won’t work (this is why businessmen criticize lawyers for being deal breakers rather than deal makers). Nothing is ever certain and there is always a reason not to take action. New ideas or proposals are met with a barrage of critical comments noting possible flaws or areas that require greater study. The criticizer looks astute and any semblance of risk is avoided.

After you have broad consensus that the problem exists, gain consensus on possible solutions at the most abstract level. Fault finders need details. Resist the temptation to give them too early in the consensus building process.

Keep it away from the committee structure. Consensus-based law firms tend to like committees – lots of committees. Any idea worth its salt will require the review of at least two operating committees not including the finance committee (if it requires any money) and the executive committee. Many of these committees have no authority to actually approve anything, but are solely empowered to disapprove things. In some firms, just getting a committee to pass something along to another committee without comment is a ringing endorsement.

One way to do this is to create an ad hoc committee specifically for a significant issue with the mandate to recommend a solution or action (note the emphasis on a positive rather than a negative result). Of course, it helps if you stack the committee with people who support your position.

Build consensus one partner at a time. The term “building consensus” is an apt description of the process. Start with the people most favorable to the concept and have them speak with others. Some managing partners would say that the bulk of their time is spent attempting to build and maintain consensus.

Make sure the issue stays on the front burner. Present new factual and detailed information regularly so the issue stays as a top priority in the minds of your partners. Leaders frequently come off as promoting the “flavor of the week” by letting too much time lapse between communications. But be careful not to just repeat the same information over and over which is viewed by partners as a sales campaign.

Make presentations short and simple. Some of law firms’ best ideas suffer “death by PowerPoint.” Firms allow form to supersede substance and elaborate processes are used to avoid taking action. Too much emphasis placed on the presentation can obfuscate or diminish the validity of the proposal.

When consensus is reached, demand a “for the record” vote. Some astute partners avoid participating in the consensus process until the initial discussion has occurred and preliminary consensus appears to have been reached. Then they begin conversations with partners who are not strong advocates of the issue in hopes of unraveling the consensus. The worst part is that leaders don’t see it coming until it is too late and even then may not know what happened.

To the new law firm leader, all of this may seem terribly Machiavellian and manipulative of a simple governance function. The role of managers is to get people to do things they would not do on their own. If they did those things on their own, you wouldn’t need managers. The role of leaders is to get people to follow a specific agenda that they would not follow, or might not even be aware of, on their own. In consensus-based organizations this takes skill and is precisely what leadership is all about.